GHANI USMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 14 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Director of Immigration (the “Director”) dated 8 November 2018 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 23 September 2020 (the “Board’s Decision”).  The Director’s Decision is not susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is hereby dismissed.

3.  It is likely that the Applicant’s true intention is to apply for leave for judicial review against the Board’s Decision.  As such, for completeness, I shall also consider the Leave Application as if the application is made in respect of the Board’s Decision. 

4.  In the Form, the Applicant named both the Board and the Director as the proposed respondents.  The Applicant further named the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent and the Director should be the proposed interested party if the Leave Application is made in respect of the Board’s Decision, I make an order to amend the Form on the court’s own motion.

5.  The Applicant requested an oral hearing for the application.  The hearing took place on 1 September 2025 and the Applicant attended in person. The Applicant however indicated at the hearing that he had nothing to say in respect of the Leave Application. 

Background

6.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

7.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

8.  In the Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply exhibited the Director’s Decision.

9.  I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  The Board was entitled to reject the Applicant’s claims based on its evaluation of the evidence and the reasoning provided (§§20-40 of the Board’s Decision).  I do not see any errors committed by the Board in the decision.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision (if that was the intention of the Applicant) is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

10.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.    

Conclusion

11.  In the light of the reasons provided above, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1